In Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal. 2011), Judge Sabraw held that a consumer survived summary judgment on the consumer’s TCPA claim. Judge Sabraw held that any consent given by the consumer to be called on the consumer’s cellular telephone could, and was, revoked. Judge Sabraw also held that the consumer need not prove that he/she was charged for the call in order to state a TCPA claim.
The facts were as follows:
In September 2009, Plaintiff Ramon Gutierrez applied for a credit card account from Defendant Barclays. In the account application, Mr. Gutierrez listed two telephone numbers: (909) 702-5919 as his home phone number and (909) 569-7913 as his work phone number. Although Mr. Gutierrez listed the 5919 number as his home number, the number did not correspond to a land line to his home. Rather, that number belonged to a cellular phone belonging to his wife, Plaintiff Clariza Gutierrez. The 7913 number corresponded to Mr. Gutierrez’s cellular phone. ¶ In October 2009, Defendant approved Mr. Gutierrez’s application and issued two separate credit cards for the account. One card was issued to Mr. Gutierrez, and the other card was issued to Mrs. Gutierrez as an authorized user. Mrs. Gutierrez was responsible for managing the account, which included reviewing and paying the bills and communicating with Defendant on all account matters. ¶ Plaintiffs made purchases on the account, but failed to make timely payments, therefore the account became delinquent. At that time, Defendant began making collection calls to the two telephone numbers associated with the account, the 5919 number and the 7913 number. Defendant also sent text messages to the 7913 number. In response to one of the text messages, Mr. Gutierrez asked Defendant to stop sending text messages. Defendant ceased all collection activity on the account as of May 13, 2010.¶ On May 12, 2010, Plaintiffs filed the present case on behalf of themselves and all others similarly situated. They allege one claim for negligent violation of the Telephone Consumer Protection Act (“TCPA”) and one claim for willful violation of the TCPA.
In finding that consent could be revoked, Judge Sabraw explained:
Defendant asserts that Plaintiff Ramon Gutierrez provided prior express consent to call his and his wife’s cellular telephone numbers when he listed those numbers on the account application. In support of this assertion, Defendant provides a copy of the on-line application form, which lists both cellular numbers. (Decl. of Michael Liu in Supp. of Mot. (“Liu Decl.”), Ex. A at 4.) Plaintiffs do not dispute that Mr. Gutierrez listed these numbers on the application, and as to Mr. Gutierrez, Plaintiffs do not dispute that he gave prior express consent to the use of his cellular number. However, Plaintiffs do dispute whether Mrs. Gutierrez gave prior express consent for the use of her cellular number. ¶ Defendant maintains that Mrs. Gutierrez gave prior express consent, and as support, it cites the deposition testimony of Mr. and Mrs. Gutierrez. Mr. Gutierrez testified that he had Mrs. Gutierrez’s consent to provide her cellular number on the account application. (Mem. of P. & A. in Supp. of Mot. at 13.) Similarly, Mrs. Gutierrez testified that it was “okay” with her if her husband provided her cellular number to credit card companies. (Reply Br. at 6.) ¶ Mrs. Gutierrez now disputes that she gave her husband consent to list her cellular number on the account application. ( See Decl. of Clariza Gutierrez in Supp. of Opp’n to Mot. (“C. Gutierrez Decl.”) ¶ 6.) Moreover, Plaintiffs argue that Mr. Gutierrez could not consent to the use of Mrs. Gutierrez’s cellular number. They contend that only Mrs. Gutierrez could provide consent for the use of her number, and she never gave that consent directly to Defendant. ¶ Neither Plaintiffs nor Defendant cite any case law on whether a husband may provide “prior express consent” for the use of his wife’s cellular number under the TCPA. In the criminal context, however, the prosecution may show that it obtained consent for a search not only with “proof that consent was given by the defendant,” but also “that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Here, Defendant has provided evidence that Mr. Gutierrez was allowed to use his wife’s cellular phone without asking her for permission, and that he did in fact use her cellular phone. (Decl. of Jordan Yu in Supp. of Mot. (“Yu Decl.”), Ex. G at 120-21.) These undisputed facts are sufficient to show that Mr. Gutierrez possessed “common authority” over his wife’s cellular telephone such that he could give Defendant “prior express consent” for its use of her cellular number, and indeed, that is precisely what happened when Mr. Gutierrez listed her number on the account application. ¶ Nevertheless, Plaintiffs argue they revoked their consent to the use of their cellular numbers. Specifically, Mr. Gutierrez asserts he revoked his prior express consent for the use of his cellular number via text message, while Mrs. Gutierrez asserts she orally revoked the consent for the use of her cellular number. Defendant does not dispute that Mr. Gutierrez revoked his prior express consent by virtue of the text message. However, it does dispute whether Mrs. Gutierrez’s oral revocation was valid. ¶ In support of its position that consent must be revoked in writing, Defendant cites two unpublished, out-of-circuit, district court cases, Starkey v. Firstsource Advantage, LLC, No. 07-CV662A(Sr), 2010 WL 2541756 (W.D.N.Y. Mar.11, 2010), and Cunningham v. Credit Management, L.P., No. 3:09-cv-1497-G(BF), 2010 WL 3791104 (N.D.Tex. Aug. 30, 2010). Starkey, however, does not address the issue presented here, namely whether a called party under the TCPA may orally revoke its prior express consent to receive certain automated or pre-recorded calls. Rather, Starkey addressed the separate question of whether written notice is required to cease debt collection calls, particularly under the Fair Debt Collection Practices Act (“FDCPA”). This Court, therefore disagrees with Cunningham’ s reading of Starkey as establishing that “revocation of consent under the TCPA must be made in writing.” 2010 WL 3791104, at *5. . . . ¶ In contrast to the authority cited by Defendant, Plaintiffs argue that the plain language of the TCPA and the 1992 Report and Order of the FCC support their position that consent under the TCPA may be revoked orally. Plaintiffs note the statute lacks any requirement that revocation of consent be in writing, as does the 1992 Report and Order. Plaintiffs also argue that oral consent is sufficient, therefore oral revocation of consent should be sufficient, as well. ¶ Although the TCPA does not expressly state whether prior express consent may be oral, the 1992 Report and Order strongly suggests that prior express consent need not be in writing. See 1992 Report and Order ¶¶ 30-31. For instance, the 1992 Report and Order uses a credit application as an example of how a consumer may provide prior express consent for the use of their telephone number. In this case, Mr. Gutierrez filled out the account application on-line, but consumers are also free to apply for credit over the telephone. It seems highly unlikely that a creditor would assert that an on-line applicant gave prior express consent, but the telephone applicant did not. Applying this logic, and absent language in the statute to the contrary, this Court agrees with Plaintiffs that prior express consent may be revoked orally and need not be in writing. Thus, both Plaintiffs revoked their prior express consent to Defendant’s use of their cellular telephone numbers. Accordingly, Defendant is not entitled to summary judgment on Plaintiffs’ claims on the basis of the “prior express consent” exception.
Judge Sabraw also held that the TCPA regulated calls to Plaintiff’s cellular telephones, even though Plaintiff was not charged for the calls, explaining:
Defendant argues it is entitled to summary judgment on Plaintiffs’ claims on the ground that neither Plaintiff was charged for either the calls or text messages to their cellular phones. Plaintiffs dispute that they needed to incur a charge to state a violation of the TCPA, and also dispute that they did not incur any charges. ¶ The relevant statutory language provides that it is unlawful for any person to make certain calls “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]” 47 U.S.C. § 227(b)(1)(A)(iii). Defendant argues the last phrase of this section modifies all the previous phrases, and therefore imposes a requirement that the party be charged for the call. Plaintiffs respond that this interpretation violates the doctrines of last antecedent and interpreting disjunctives. . . . Clearly, if § 227(b)(1)(A)(iii) did not include “calls to a telephone number assigned to a cellular telephone service that are not charged to the called party[,]” i.e., calls for which the party was not charged, there would be no need for the FCC to create an exemption. Thus, based on this Court’s reading of the statute, Plaintiffs need not show that they were charged for the calls or text messages to their cellular phones to prevail on their TCPA claims. Defendant’s argument to the contrary does not warrant summary judgment in its favor.